[1987] OLRB Rep. February 193
0726-86-U Michael Connoily and Ucal Powell, Complainants, v. United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Toronto and Vicinity, Matt Whelan and United Brotherhood of Carpenters and Joiners of America Local Union No. 27, Respondents
BEFORE: Robert J. Herman, Vice-Chairman, and Board Members J. A. Rundle and R. R. Montague.
APPEARANCES: Michael Connolly and Ucal Powell for the complainants; Douglas J. Wray, Frank Rimes and Matt Whelan for Carpenters' Local No. 27, Carpenters District Council of Toronto and Matt Whelan; L. N. Gottheil and Derrick Manson for United Brotherhood of Carpenters' and Joiners of America.
DECISION OF THE BOARD; February 4, 1987
The complainants allege that some or all of the named respondents violated sections 3, 68, 70, and 72(5) of the Labour Relations Act. In a hearing convened on September 22, 1986, the Board heard submissions from all parties and delivered oral reasons dismissing this complaint. We hereby confirm that decision and set out more fully the reasons given at the hearing.
The respondents argued, inter alia, that the complaint ought to be dismissed as disclosing no prima facie case with respect to any of the pleaded sections of the Act. Dealing first with the allegation pursuant to section 68 of the Act, the Board dismissed the complaint for the following reasons. The complainants, as set out in the written complaint filed in this proceeding and as expanded by both complainants at the hearing, have alleged that the respondents breached section 68 in their treatment of the complainants with respect to the manner in which local union meetings were conducted. As the complainants stated in the complaint filed:
Michael Connolly is a member of the United Brotherhood of Carpenters and Joiners of America (the "international union") and has been for approximately nine years. He is also a member of Local 27 of the international union and has been a committee member and active in trade union affairs.
Ucal Powell is a member of the international union and has been for approximately sixteen years. He is also a member of Local 27 of the international union. He had held elected union office in prior years and has always been active in trade union affairs.
Matt Whelan is President of Local 27 and President of Carpenters District Council of Toronto and vicinity (the "District Council"). By virtue of his position as President of Local 27, Mr. Whelan acts as chairman of local union meetings.
Important differences of principle with respect to collective bargaining matters arose between the complainants and others and Mr. Whelan and others. In addition, the complainants objected continually to the undemocratic and unconstitutional manner in which Mr. Whelan conducted local union meetings.
On August 13, 1985, Mr. Powell challenged the chair occupied by Mr. Whelan at a Local 27 meeting in a manner consistent with the constitution of the international union.
On September 5,1985, Mr. Whelan laid a charge against Mr. Powell arising from the incident which occurred on August 15 [sic], 1985.
On September 3,1985, Mr. Connolly insisted that a Local 27 meeting be conducted in accordance with the international union constitution. An objection was raised about the failure of the Recording Secretary of Local 27, William Armstrong, to accurately record in the minutes the events described in paragraph 5 above, and, in particular, his failure to include the fact that Mr. Powell had challenged the chair. After another member had challenged the chair occupied by Mr. Whelan, Mr. Connolly rose on point of order and insisted that the meeting be conducted in a manner consistent with the international union.
On September 5, 1985, Mr. Whelan laid a charge against Mr. Connolly, arising from the incident which occurred on September 3, 1985.
The charges against Messrs. Connolly and Powell were preferred, as required under the international constitution, at the District Council. The District Council executive has the power to either dismiss charges or to refer same to a trial committee of the District Council.
Two members of the executive of the District Council in the case of Mr. Connolly were present at the time of the events giving rise to the charge and were known to be opponents of Mr. Connolly concerning collective bargaining and others matters. The complainant Connolly understands that, in addition, Mr. Whelan, who was also similarly opposed to Mr. Connolly, was in attendance at that District Council executive meeting. The executive decided to refer the charge to a trial committee.
The executive of the District Council decided also to refer the charge against Mr. Powell to a trial committee.
In the case of Mr. Powell, the Recording Secretary of Local 27, William Armstrong, who was present on the occasion of the events giving rise to the charges against Mr. Powell, was a member of the trial committee constituted to hear the charge. Mr. Armstrong was known to be an opponent of Messrs. Powell and Connolly concerning collective bargaining and other matters.
After a "trial" conducted under the auspices of the District Council, Messrs. Connolly and Powell were found guilty in October 1985. On November 14, 1985, Messrs. Connolly and Powell were barred from attending meetings or holding office for two years.
An appeal by Messrs. Connolly and Powell to the Standing Appeals Committee of the international union was rejected by letter dated April 15, 1986.
To summarize the above particulars, the complainants essentially seek to question, by alleging a breach of section 68, the procedures followed by the respondents in the conducting of local union meetings, in the alleged failure to follow the constitution of the International Union, and in the processing and trial of charges against the two complainants, as referred to under that same constitution. There was no suggestion that any of these complaints were concerned with the representation by any of the respondents of the complainants with respect to any employment matters or any relationship with their employers.
As the Board stated in Frank Manoni, [19811 OLRB Rep. Dec. 1775:
Section 68 provides:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
The first problem facing the complainants in this regard is that neither of them are employees in a bargaining unit. This is more than a technicality. The section is an outgrowth of what certain American cases, such as Vaca v. Sipes (1967), 386 U.S. 171, described as "the duty of fair representation", and is concerned with the representation of employees with their employer.
- This precise point was dealt with by the Board in Arthur Joseph Roberts v. Operative Plasters' and Cement Masons' International Association of the United States and Canada, Local 48, [1974] OLRB Rep. Mar. 169, in which the complainant, an elected business agent of the Local, complained that he was arbitrarily removed from office. The Board stated, at paragraph 8:
- . .the duty of fair representation owed by a trade union to an employee under section 60 (now section 68) of the Act does not contemplate controlling the manner in which a trade union conducts its affairs with its elected officials whether they be on the payroll or not. The case law indicates that the propriety of a trade union's behaviour vis-a-vis its members is governed by its constitution and by-laws and the procedural remedies provided there-in. And recourse must be made by an aggrieved member of the governing rules provided under the constitution for relief. The safeguard provided by the controlling supervision of the courts are his assurance that these rules will be implemented fairly and impartially. (See White v. Kuzych (1951), 1951 CanLII 373 (UK JCPC), A.C. 585; Lee V. Showmans Guild (1952), All. E.R. 1175; Orchard v. Tunney, (1957), 1957 CanLII 57 (SCC), S.C.R. 436; 8 D.L.R. (2d) 273; Jurak etal v. Cunningham (No. 1) (1959), 1959 CanLII 340 (BC SC), 20 D.L.R. (2d) 377; Jurak et al v. Cunningham (No. 2) (1959), 1959 CanLII 341 (BC SC), 20 D.L.R. (2d) 381; Gee v. Freeman et al (1958), 1958 CanLII 258 (BC SC), 26 W.W.R. 546).
The Board went on to hold, at paragraph 20, that "under section 60 a trade union's duty of fair representation does not extend to members in good standing who are not employees in a bargaining unit". To a similar effect, see Gale Douglas Devereaux, [1975] OLRB Rep. Nov. 885, at paragraph 9. It should be added that even if brought by persons currently employed in a bargaining unit (and the complainants claim to "represent" a number of such persons), the present complaint still would be misconceived under section 68. The arbitrary, discriminatory or bad faith conduct directed at such employees and regulated by the section must be such as to produce actual, and not merely speculative prejudice to those employees at the hands of their employer.
We agree with and adopt the proposition set out in the quoted passages above. Section 68 is concerned with the duty owed by unions to employees whom they represent, in a given bargaining unit, with respect to the representation of those employees insofar as their relationship with their employer is concerned. It is common ground in the instant proceeding that the facts complained of do not involve representational rights with respect to any employer. Accordingly on this ground the complaint is dismissed.
The complainants further alleged a violation of section 72(5) of the Act, which reads as follows:
(5) All employees in a bargaining unit, whether or not such employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement.
The particulars set out in the complaint with respect to the alleged breach of this subsection read as follows:
Collective bargaining took place during 1986 between the Carpenters Employer Bargaining Agency and the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America (the "Provincial Council").
On May 25, 1986, a meeting for purposes including the taking of a strike vote was held by Local 27. Messrs. Connolly and Powell attended that meeting with the intention of exercising their right to vote. Mr. Whelan was in the chair. During the meeting and at a time when the vote was taking place, Mr. Whelan insisted that Messrs. Connolly and Powell leave the meeting. As a result Messrs. Connolly and Powell were denied the right to vote and afforded no opportunity to do so.
All parties agreed that the strike vote in question was with respect to the ICI sector of the construction industry, and the collective bargaining issue was with respect to the provincial agreement. Based on the circumstances as particularized and agreed to by the parties at the hearing, the Board is of the view that section 149a of the Labour Relations Act is applicable, and would have the effect, where there is a conflict, of overriding any rights provided under section 72(5) of the Act.
Section 149a of the Act reads as follows:
149a. -(1) Where an employee bargaining agency or an affiliated bargaining agent conducts a strike vote relating to a provincial bargaining unit or a vote to ratify a proposed provincial agreement, the only persons entitled to cast ballots in the vote shall be,
(a) employees in the provincial bargaining unit on the date the vote is conducted; and
(b) persons who are members of the affiliated bargaining agent or employees bargaining agency and who are not employed in any employment,
(i) on the day the vote is conducted, if the vote is conducted at a time when there is no strike or lock-out relating to the provincial
bargaining unit, or
(ii) on the day before the commencement of the strike or lock-out, if the vote is conducted during a strike or lock-out relating to the
provincial bargaining unit.
(2) Where an employer bargaining agency or employers' organization conducts a lock-out vote relating to a provincial bargaining unit or a vote to ratify a proposed provincial agreement, the only employers entitled to cast ballots in the vote shall be employers represented by the employer bargaining agency or employers' organization that employed,
(a) on the day the vote is conducted, if the vote is conducted at a time when there is no strike or lock-out relating to the provincial bargaining unit; or
(b) on the day before the commencement of the strike or lock-out, if the vote is conducted during a strike or lock-out relating to the provincial bargaining unit,
employees who are represented by the employee bargaining agency or an affiliated bargaining agent that would be affected by the lock-out or would be bound by the provincial agreement.
(3) Within five days after a vote is completed, the employee bargaining agency, affiliated bargaining agent, employers' organization or employer bargaining agency conducting the vote, as the case may be~ shall file with the Minister a declaration in the prescribed form certifying the result of the vote and that it took reasonable steps to secure compliance with subsection (1) or (2), as the case may be.
(4) Where a complaint is made to the Minister that subsection (1) or (2) has been contravened and that the result of a vote has been affected materially thereby, the Minister may, in the Minister's discretion, refer the matter to the Board.
(5) No complaint alleging a contravention of this section shall be made except as may be referred to the Board under subsection (4).
(6) No complaint shall be considered by the Minister unless it is received within ten days after the vote is completed.
(7) Where, upon a matter being referred to the Board, the Board is satisfied that subsection (1) or (2) has been contravened and that such contravention has affected materially the results of a vote, the Board may so declare and it may direct what action, if any, a person, employer, employers' organization, affiliated bargaining agent, employee bargaining agency or employer bargaining agency shall do or refrain from doing with respect to the vote and the provincial agreement or any related matter and such declaration or direction shall have effect from and after the day the declaration or direction is made.
Of particular note in the instant proceedings are subsections 4 and 5 of section 149a. Those subsections make clear that any complaint with respect to entitlement of persons to cast ballots in a strike vote or ratification vote in the ICI sector must be made to the Minister, and not to the Ontario Labour Relations Board. Subsection 6 of section 149a requires that any such complaint with respect to a vote held pursuant to s.149a, made to the Minister, must be made within 10 days after the vote is completed. In the instant proceedings, the complaint deals with the entitlement of the complainants to vote in an ICI strike vote, a vote dealt with under s. 149a, but the complaint before the Board was neither made to the Minister, nor made within ten days of the vote being held, as required by s.149a(4), (5) and (6). The Board's general authority under s.89 of the Act, to deal with contraventions of the Act, must be read as modified by s. 149a(5). Section 149a came into effect on June 27, 1984, and was designed to regulate the entitlement of employees to vote in the ICI sector, and further to regulate the procedures for complaining about the entitlement of individuals to cast ballots in any such votes. When an individual seeks to complain about such a matter, it is incumbent upon that individual to follow the procedures prescribed in section 149a.
Section 138 of the Act states, in effect, that the provisions of section 149a shall prevail in the event of any conflict between it and section 72. The subsection alleged to have been breached, 72(5), deals with entitlement to vote, the very subject matter dealt with by s.149a, with respect to ICI votes. In the circumstances of this case, we conclude that the combined effect of sections 138 and 149a are such that section 149a supplants section 72(5), and the complainants had to complain pursuant to section 149a, to the Minister, and within ten days of the strike vote having been taken. For the Board to have the jurisdiction to consider the allegations set out by the complainants, the Minister, if he so chose, would have had to refer this question to the Board. Accordingly, the complaint insofar as it alleges a violation of section 72(5) of the Act is hereby dismissed.
The complaints also allege a violation of section 70 of the Act. Section 70 reads as follows:
No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
To find a prima facie case for purposes of section 70, the pleadings, either as particularized in the complaint or as expanded upon by the complainants, must allege instances of intimidation or coercion. The complainants in their oral submissions to the Board made clear that neither physical intimidation nor threats were involved. Rather, the complainants alleged that political differences with the leadership of Local 27 and the International Union caused them to be removed from the Local. Members "have been shown that if they express views contrary to the respondent Whelan they can expect to be thrown out of union meetings or perhaps worse." They further alleged intimidation or coercion resulting from unfair constitutional provisions of the union, or from those same constitutional provisions not being followed by the respondents. In the complainants' view any dissenting voices within the union, including their own, were being unfairly stifled by any or all of the respondents. Finally, they alleged economic intimidation on the ground that a right to employment was being denied. There were no specifics, other than as set out in the particulars and as recited in this paragraph, suggesting particular intimidating or coercive actions.
The Board's task in assessing whether a prima facie case exist is a delicate one. We take as true all the facts alleged by the complainants, but having done so, the Board must assess whether the facts, if proved, would sustain an arguable violation of the Labour Relations Act, as against insuring that respondents must know, prior to being subjected to a hearing, what the complaint is against them and that if proven true, such complaint is at least arguably a violation of the Act. Respondents must know the case alleged against them in sufficient detail to be able to prepare a defence. In the instant case, there is nothing in the particulars, as written and as expanded before the Board, setting out particular instances of either intimidation or coercion such that an arguable case under section 70 could be found. Whether the internal union procedures are fair or not, or are perhaps designed to penalize certain employees, are matters generally of an internal union nature, and do not attract Board scrutiny pursuant to section 70. Our scrutiny pursuant to that section is limited by its very words to instances suggestive of intimidation or coercion, none of which have been pleaded (see, for example, Keith Sutherland, [1983] OLRB Rep. July 1219). Accordingly the complaint insofar as it alleges a breach of section 70 is also dismissed.
The complainants also pleaded a violation of section 3 of the Act. The Board has held in numerous cases (e.g. Keith Sutherland, supra) that section 3 of the Act does not create a substantive offence. In the instant proceeding whether standing alone or taken in concert with section 68, 70, or 72(5), the Board is satisfied that there is no prima facie case for a violation of section 3, and accordingly the last aspect of the complaint is also dismissed.
In giving its oral decision as set out above, the Board noted that the decision dismissing the complaint was without prejudice to the complainants' right to refile a complaint pursuant to section 70 of the Act, provided they can plead sufficient and necessary facts, suggesting particular instances of intimidation or coercion and linking those instances to an alleged breach of section 70 of the Act. At this stage, as pleaded and expanded, those particulars are not sufficient on which to base a prima facie case, but the Board made clear to the complainants that they were free to refile provided proper particulars were provided.
The Board notes the undertaking given at the hearing by counsel for Local 27, the District Council, and Matt Whelan, that should there be any proposed amendment to the current provincial agreement that is referred to the membership for ratification, during any term of suspension arising from the pleaded facts, still applicable to the complainants, the complainants will be allowed to and entitled to vote on any such proposed amendment. Counsel was not undertaking that any such amendment would in fact be referred to the membership for ratification; rather, if the union did decide to so refer it the complainants would both be fully entitled to participate in any such vote.
Based on the above, this complaint is dismissed.